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Saturday, September 20, 2014

Proof will - No suspicious clouds - Apex court held that mere exclusion of sons does not invalid the will - active participation of beneficiary in getting the attestator and in execution & registration does not invalid the will - mere no filing of complaint about the lose of original will does not invalid will - English will - practice to read over and explained by Sub- Reg. removed all doubts over the will in English language = CIVIL APPEAL NO. 9282 OF 2010 LEELA RAJAGOPAL & ORS. … APPELLANT (S) VERSUS KAMALA MENON COCHARAN & ORS. … RESPONDENT (S) =2014 - Sept. Month - http://judis.nic.in/supremecourt/filename=41890

Proof will - No suspicious clouds - Apex court confirmed the judgment of High court and held that mere exclusion of sons does not invalid the will - active participation of beneficiary in getting the attestator and in execution & registration does not invalid the will - mere no filing of complaint about the lose of original will does not invalid will - English will - practice to read over and explained by Sub- Reg. removed all doubts over the will in English language =
The said question is
with regard to the validity and legality of a Will dated 11.1.1982 executed
by one K.P. Janaki Amma, the mother of the appellants and the first
respondent. The learned Trial Judge by his order dated 23.01.2001dismissed the probate proceedings instituted by the first respondent (laterconverted into a Suit being T.O.S. No. 16 of 1994) by holding that theexecution of the Will dated 11.1.1982 is surrounded by a host of suspiciouscircumstances rendering the same legally unacceptable.
The aforesaid view
of the learned Trial Judge of the High Court having been overturned by the
Division Bench of the High Court by impugned order dated 18.08.2009, the
present appeals have been filed.=
A Will may have certain features and may have been executed in
certain circumstances which may appear to be somewhat unnatural.
Such
unusual features appearing in a Will or the unnatural circumstances
surrounding its execution will definitely justify a close scrutiny before
the same can be accepted.
It is the overall assessment of the Court on the
basis of such scrutiny; the cumulative effect of the unusual features andcircumstances which would weigh with the Court in the determinationrequired to be made by it. The judicial verdict, in the last resort, willbe on the basis of a consideration of all the unusual features andsuspicious circumstances put together and not on the impact of any singlefeature that may be found in a Will or a singular circumstance that mayappear from the process leading to its execution or registration.
This, is
the essence of the repeated pronouncements made by this Court on the
subject including the decisions referred to and relied upon before us.

11. In the present case, a close reading of the Will indicates its clear
language, and its unambiguous purport and effect. The mind of the testatoris clearly discernible and the reasons for exclusion of the sons isapparent from the Will itself. Insofar as the place of execution isconcerned,the inconsistency appearing in the verification filed alongwiththe application for probate by PW-3 and the oral evidence of the saidwitness tendered in Court is capable ofbeing understood in the light ofthe fact that the verification is in a standard form (Form No. 55)prescribed by the Madras High Court on the Original Side, as alreadynoticed.
Besides, in the facts of the present case the participation ofthe first respondent in the execution and registration of the Will cannotbe said to be a circumstance that would warrant an adverse conclusion.
The
conduct of the first respondent in summoning her friend (PW-3) to be anattesting witness and in taking the testator to the office of the SubRegistrar should, again, not warrant any adverse conclusion. It also cannotescape notice that the Will dated 11.1.1982 is identical with the contentsof the earlier Will dated 28.12.1981. Insofar as the execution of theWill dated 28.12.1981 and its registration is concerned no activeparticipation has been attributed to the first respondent. The change ofthe attesting witnesses and the non-examination of Seetha Padmanabhan whohad attested the second Will dated 11.1.1982 has been sufficientlyexplained.

12. The lack of knowledge of English even if can be attributed to thetestator would not fundamentally alter the situation inasmuch as beforeregistration of the Will the contents thereof can be understood to havebeen explained to the testator or ascertained from her by the SubRegistrar, PW-4, who had deposed that such a practice is normally adheredto.The non-production of the original Will and reliance on the certifiedcopy thereof is a circumstance which has been reasonably explained by thefirst respondent (plaintiff).The original Will, after its execution on11.1.1982, was in the custody of the testator and it is only on the day orher death i.e. 27.4.1991 that the first respondent (plaintiff) could findthat the Will was missing from the envelope marked ‘KPP Will’. The standof the plaintiff that the original Will was lost while in the custody ofher mother and her knowledge of such loss on the day of her mother’s deathcannot be disbelieved merely because no report in this regard was lodgedbefore the police.
13. All the unusual and allegedly suspicious circumstances being capableof being understood in the manner indicated above, we cannot find any faultwith the conclusions reached by the High Court while reversing the judgmentof the learned Trial Court.
14. Before parting we would like to observe that the very fact that an
appeal to this Court can be lodged only upon grant of special leave to
appeal would indicate the highly circumscribed nature of the jurisdiction
of this Court. In contrast to a statutory appeal, an appeal lodged upon
grant of special leave pursuant to a provision of the Constitution would
call for highly economic exercise of the power which though wide to strike
at injustice wherever it occurs must display highly judicious application
thereof. Determination of facts made by the High Court sitting as a first
appellate court or even while concurring as a second appellate court would
not be reopened unless the same give rise to questions of law that require
a serious debate or discloses wholly unacceptable conclusions of fact which
plainly demonstrate a travesty of justice. Appreciation or re-appreciation
of evidence must come to a halt at some stage of the judicial proceedings
and cannot percolate to the constitutional court exercising jurisdiction
under Article 136.

15. We, accordingly, dismiss these appeals affirm the order dated
18.08.2009 passed by the Division Bench of the High Court in Original Side
Appeal No. 185 of 2001. However, in the facts and circumstances of the
case, we make no order as to cost. 2014 - Sept. Month - http://judis.nic.in/supremecourt/filename=41890
REPORTABLE

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 9282 OF 2010

LEELA RAJAGOPAL & ORS. … APPELLANT (S)

VERSUS

KAMALA MENON COCHARAN & ORS. … RESPONDENT (S)

WITH

CIVIL APPEAL NO. 9286 OF 2010
CIVIL APPEAL NO. 7004 OF 2012

J U D G M E N T

RANJAN GOGOI, J.

1. All the three appeals being directed against the common judgment and
order of the High Court dated 18.08.2009 were heard analogously and are
being disposed of by this order.

2. In the present appeals, which challenge a judgment of reversal passed
by a Division Bench of the High Court of Madras, determination of what is
essentially a question of fact confronts this Court exercising its
jurisdiction under Article 136 of the Constitution. The said question iswith regard to the validity and legality of a Will dated 11.1.1982 executedby one K.P. Janaki Amma, the mother of the appellants and the firstrespondent. The learned Trial Judge by his order dated 23.01.2001dismissed the probate proceedings instituted by the first respondent (laterconverted into a Suit being T.O.S. No. 16 of 1994) by holding that theexecution of the Will dated 11.1.1982 is surrounded by a host of suspiciouscircumstances rendering the same legally unacceptable. The aforesaid viewof the learned Trial Judge of the High Court having been overturned by theDivision Bench of the High Court by impugned order dated 18.08.2009, thepresent appeals have been filed.

4. Testator Late Janaki Amma had initially executed a Will dated
28.12.1981 bequeathing house property bearing No. 8, Malony Road, T. Nagar,
Madras-17 in favour of the first respondent Kamala Menon Cochran and her
grand-daughter Geetha (daughter of her predeceased daughter Leela). The
said Will, inter alia, contained a recital that the testator had 4 sons.
In the Will dated 28.12.1981 the testator had acknowledged that her sons
are all well settled in life and had properties purchased in their names
during the life time of their father. The testator had further stated that
she had suffered extreme bereavement on the death of her daughter Leela
which occurred on 02.02.1975 and therefore out of the deep attachment for
her grand-daughter, Geetha, and also as her second daughter K.P. Kamala
Menon i.e. respondent No. 1 aged 46 years who is a Principal in a College
and a spinster she is bequeathing the house property in favour of her grand-
daughter and her daughter to the exclusion of her sons. The said Will
dated 28.12.1981 was superseded/revoked by a subsequent Will dated
11.1.1982 which contained similar recitals as in the first Will dated
28.12.1981 except for the fact that instead of 4 sons the testator
mentioned that she had 5 living sons. After the death of Janaki Amma which
occurred on 27.04.1991 the respondent No. 1 had instituted a probate
proceedings which was later converted into a suit, as the Will was disputed
by the sons of the deceased.

5. The appellants who were the defendants in the suit and respondents
before the High Court had contested the legal validity of the Will dated
11.1.1982 by asserting that the same was not a valid instrument of
conveyance executed on the free volition of the testator; rather it was
dictated at the instance of the first respondent-daughter who had exercised
undue influence and coercion on the testator. To substantiate the
contentions advanced, the contesting defendants had led evidence to show
that the Will was executed in circumstances which give rise to serious
doubts, with regard to its voluntary execution by the testator.

6. The learned Trial Court on a consideration of the cases of the
parties and the evidence and materials adduced took note of the following
circumstances surrounding the execution of the Will :

(i) No specific reason was disclosed as to why the sons i.e. the present
appellants had been excluded from the Will;

(ii) At the time of execution of the Will the respondent No. 1 had come
down from Tirupathi where she was working as a college teacher/Principal to
Madras and was staying with the mother i.e. the testator;

(iii) Only a fortnight earlier to the execution of the Will i.e. on
10.12.1981 the testator had written a letter (Ex. P8) to one of her sons
Thangamani (Predecessor-in-interest of appellants in C.A. No. 9282 of 2010)
expressing her intention to partition the house property, which was the
subject matter of Will, equally among all the children;

(iv) Non-production of the original copy of the Will;

(v) The discrepancy in the evidence of the witnesses of the plaintiff
with regard to the place of execution of the Will; and

(vi) The prominent part played by the plaintiff (respondent No. 1 herein)
in the registration of the Will.

These circumstances, according to the learned Trial Court, were
suspicious enough to justify a conclusion that the Will ought not to be
accepted as a valid instrument executed on the free will and volition of
the testator.
7. In appeal, the High Court, on consideration of the grounds and
reasons which had persuaded the learned Trial Court to take the above view,
thought it proper to disagree with the same and reverse the consequential
findings. It may be noticed, at this stage, that in its very elaborate
order the High Court had gone into each of the circumstances mentioned
above; the evidence in support thereof as adduced by the parties and the
arguments advanced before reversing the findings of the learned Trial
Court.
8. Learned counsels for the appellants, in all the three appeals before
us, submitted that between 11.1.1982 i.e. alleged date of execution of the
Will and 27.4.1991 i.e. date of death of the testator, the beneficiaries
under the Will had not informed anybody about the existence of the Will
which according to the learned counsel is unnatural. Pointing out the
evidence with regard to the place of execution of the Will, learned counsel
have contended that there is an apparent inconsistency in this regard
inasmuch as while in the verification submitted alongwith the probate
petition as required under Sections 281 and 282 of the Indian Succession
Act, 1925 PW-3 had claimed that the Will was executed in the house of the
testator, in her evidence, PW-3, had stated that the same was executed in
the office of the Sub-Registrar. However, PW-4, the Sub-Registrar who was
examined did not categorically depose about the place where the Will was
executed. Reference has been made by the learned counsels for the
appellants to other suspicious circumstances, enumerated hereinabove, to
contend that the same are sufficient and adequate to justify rejection of
the Will in question. Specifically, it was argued that no explanation has
been offered for non-production of the original Will and the High Court has
accepted the story of loss of the Will on the mere statement of the first
respondent. On the said basis it is contended that the first respondent,
as the Plaintiff, could not have led secondary evidence in support of the
Will in the absence of clear and convincing proof of the loss of the
original Will. Bringing in a different set of attesting witnesses in place
of the witnesses who had attested the execution of the first Will dated
28.12.1981; the non-examination of the attesting witness Seetha Padmanabhan
and the examination of the second witness (PW-3) Jaya Lakshmi who was a
colleague of the plaintiff are other circumstances which the learned
counsel for the appellants contends to be highly suspicious. The absence
of any evidence to show the lack of cordial relationship between the
testator and her sons and the fact that defendant No. 4 i.e. one of the
sons was actually looking after the mother has also been stressed upon to
point out that there was no reason to exclude the sons under the Will. In
fact, learned counsels for the appellants have pointed out that PW-2 and
PW-3 had clearly and categorically stated that the relationship between the
testator and her sons was good. It is further argued that the letter dated
10.12.1981 (Ex. P8) of the mother to one of the sons, properly read,
indicates a very cordial relationship and the purport thereof has been
thoroughly misinterpreted by the High Court to come to the impugned
findings and conclusions. The lack of knowledge of English on the part of
the testator has also been cited as another circumstance to justify its
rejection. Reliance has been placed on behalf of the appellants on the
decision of this Court in H. Venkatachala Iyengar Vs. B.N. Thimmajamma and
Others[1] as well as on a more recent pronouncement in Bharpur Singh and
Others Vs. Shamsher Singh[2] to contend that active participation of the
first respondent in execution and registration of the Will ought to be
viewed by us as raising serious doubts with regard to the voluntary
execution of the Will by the testator. Two other decisions of this Court
in Rani Pnrnima Debi and Another Vs. Kumar Khagendra Narayan Deb and
Another[3] and Apoline D’souza Vs. John D’souza[4] have also been placed
to contend that the absence of any evidence to show that the Will was read
over and explained to the testator, in view of her lack of knowledge of
English, would be crucial for determination of the authenticity of the Will
in question.
9. Opposing the arguments advanced on behalf of the appellants, Shri
Vijay Hansaria, learned senior counsel appearing for respondent No. 1 has
argued that the acceptance or rejection of the Will, in the ultimate
analysis would depend on the satisfaction of the judicial conscience of the
Court with regard to its due execution. Shri Hansaria has submitted that
no single circumstance would be determinative of the question and it is the
cumulative effect thereof which would be vital to the adjudication required
to be made by the Court. The mere participation of the first respondent in
the execution and registration of the Will; her presence in Madras at the
time of execution of the Will will in no way affect the validity thereof,
it is contended. Insofar as the discrepancy in the place of execution of
the Will is concerned, Shri Hansaria has pointed out that the verification
filed alongwith the application for probate was in the standard form
prescribed by the Original Side Rules of the High Court of Judicature at
Madras (Form No. 55 which mentions the place of execution as the House of
…….). Insofar as the loss of the original Will is concerned it is submitted
that the same was in custody of the testator and was found to be missing
only after her death. It is in these circumstances that the probate
proceedings were instituted on the basis of the certified copy of the Will
which is authorised under the provisions of the Indian Succession Act.
Insofar as the issue with regard to knowledge of English of the testator is
concerned, apart from pointing out the relevant part of the evidence of the
witnesses to show that the testator could read and understand English, it
is argued that PW-4 (Sub-Registrar) had deposed that in all cases of
registration the testator is asked whether he/she is aware of the contents
of the Will. Shri Hansaria has cited the decision of this Court in
Pentakota Satyanarayana and Others Vs. Pentakota Seetharatnam and
Others[5] to contend that mere active participation in the registration of
the Will by itself would not be a vitiating factor. Reliance has also been
placed on two decisions of this Court in Mahesh Kumar (Dead) by Lrs. Vs.
Vinod Kumar and Others[6] and Ved Mitra Verma Vs. Dharam Deo Verma[7] to
show that mere exclusion of the other heirs will not vitiate the
disposition made by a Will.

10. A Will may have certain features and may have been executed incertain circumstances which may appear to be somewhat unnatural. Suchunusual features appearing in a Will or the unnatural circumstancessurrounding its execution will definitely justify a close scrutiny beforethe same can be accepted. It is the overall assessment of the Court on thebasis of such scrutiny; the cumulative effect of the unusual features andcircumstances which would weigh with the Court in the determinationrequired to be made by it. The judicial verdict, in the last resort, willbe on the basis of a consideration of all the unusual features andsuspicious circumstances put together and not on the impact of any singlefeature that may be found in a Will or a singular circumstance that mayappear from the process leading to its execution or registration. This, isthe essence of the repeated pronouncements made by this Court on thesubject including the decisions referred to and relied upon before us.11. In the present case, a close reading of the Will indicates its clearlanguage, and its unambiguous purport and effect. The mind of the testatoris clearly discernible and the reasons for exclusion of the sons isapparent from the Will itself. Insofar as the place of execution isconcerned, the inconsistency appearing in the verification filed alongwiththe application for probate by PW-3 and the oral evidence of the saidwitness tendered in Court is capable of being understood in the light ofthe fact that the verification is in a standard form (Form No. 55)prescribed by the Madras High Court on the Original Side, as alreadynoticed. Besides, in the facts of the present case the participation ofthe first respondent in the execution and registration of the Will cannotbe said to be a circumstance that would warrant an adverse conclusion. Theconduct of the first respondent in summoning her friend (PW-3) to be anattesting witness and in taking the testator to the office of the SubRegistrar should, again, not warrant any adverse conclusion. It also cannotescape notice that the Will dated 11.1.1982 is identical with the contentsof the earlier Will dated 28.12.1981. Insofar as the execution of theWill dated 28.12.1981 and its registration is concerned no activeparticipation has been attributed to the first respondent. The change ofthe attesting witnesses and the non-examination of Seetha Padmanabhan whohad attested the second Will dated 11.1.1982 has been sufficientlyexplained.12. The lack of knowledge of English even if can be attributed to thetestator would not fundamentally alter the situation inasmuch as beforeregistration of the Will the contents thereof can be understood to havebeen explained to the testator or ascertained from her by the SubRegistrar, PW-4, who had deposed that such a practice is normally adheredto. The non-production of the original Will and reliance on the certifiedcopy thereof is a circumstance which has been reasonably explained by thefirst respondent (plaintiff). The original Will, after its execution on11.1.1982, was in the custody of the testator and it is only on the day orher death i.e. 27.4.1991 that the first respondent (plaintiff) could findthat the Will was missing from the envelope marked ‘KPP Will’. The standof the plaintiff that the original Will was lost while in the custody ofher mother and her knowledge of such loss on the day of her mother’s deathcannot be disbelieved merely because no report in this regard was lodgedbefore the police.13. All the unusual and allegedly suspicious circumstances being capableof being understood in the manner indicated above, we cannot find any faultwith the conclusions reached by the High Court while reversing the judgmentof the learned Trial Court.14. Before parting we would like to observe that the very fact that anappeal to this Court can be lodged only upon grant of special leave toappeal would indicate the highly circumscribed nature of the jurisdictionof this Court. In contrast to a statutory appeal, an appeal lodged upongrant of special leave pursuant to a provision of the Constitution wouldcall for highly economic exercise of the power which though wide to strikeat injustice wherever it occurs must display highly judicious applicationthereof. Determination of facts made by the High Court sitting as a firstappellate court or even while concurring as a second appellate court wouldnot be reopened unless the same give rise to questions of law that requirea serious debate or discloses wholly unacceptable conclusions of fact whichplainly demonstrate a travesty of justice. Appreciation or re-appreciation of evidence must come to a halt at some stage of the judicial proceedingsand cannot percolate to the constitutional court exercising jurisdictionunder Article 136.15. We, accordingly, dismiss these appeals affirm the order dated18.08.2009 passed by the Division Bench of the High Court in Original SideAppeal No. 185 of 2001. However, in the facts and circumstances of thecase, we make no order as to cost.
...………….…………………J.
[RANJAN GOGOI]